Losier v. Clement, (1970) 3 N.B.R.(2d) 317 (CA)

• Judge: Bridges, C.J.N.B., Limerick and Hughes, JJ.A.
• Court: Court of Appeal (New Brunswick)
• Case Date: March 31, 1970
• Jurisdiction: New Brunswick
• Citations: (1970), 3 N.B.R.(2d) 317 (CA)

Losier v. Clement (1970), 3 N.B.R.(2d) 317 (CA);

    3 R.N.-B.(2e) 317

MLB headnote and full text

Sommaire et texte intégral

Losier v. Clement

Indexed As: Losier v. Clement

Répertorié: Losier v. Clement

New Brunswick Court of Appeal

Bridges, C.J.N.B., Limerick and Hughes, JJ.A.

November 25, 1970.

Summary:

Résumé:

The New Brunswick Court of Appeal dismissed the appeal and affirmed the decision of the trial judge in favour of the plaintiff for damages for personal injuries arising out of a motor vehicle accident. The plaintiff was a passenger in the defendant's motor vehicle and the Court held the defendant grossly negligent for driving on the wrong side of a highway when approaching a blind knoll and subsequently losing control of the motor vehicle. Limerick, J.A. dissenting, would have allowed the appeal and he found that the evidence did not support a claim for gross negligence.

Appeal from a judgment of Dickson, J., dated March 31, 1970, (1970), 2 N.B.R.(2d) 408, which awarded the plaintiff, passenger damages for personal injury arising out of a motor vehicle accident.

Torts - Topic 328

Negligence - Motor vehicle, gratuitous passengers - What constitutes gross negligence - Defendant driver held liable to plaintiff passenger for gross negligence for driving on the wrong side of highway when approaching a blind knoll and subsequently losing control of the motor vehicle (New Brunswick Court of Appeal).

Practice - Topic 5255

Trials, general - Consolidation of actions - Evidence - Use of evidence - Two actions consolidated for purposes of trial - Effect of evidence led by defendant in one action - The New Brunswick Court of Appeal held that the defendants in the two actions were in the same position as if they had been co-defendants with defences adverse to each other.

Torts - Topic 9944

Evidence and proof - Proof - Pleading - Practice - Trial Judge's finding of negligence based on particulars which were not pleaded - The New Brunswick Court of Appeal held that a judgment based on an unpleaded particular will not be set aside unless the failure to plead has misled the other party.

Cases Noticed:

Semeniuk v. Scoyoc, [1955] 4 D.L.R. 780, folld.

Beal et al. v. Napper et al. (1959), 45 M.P.R. 199, ref'd to.

Walker v. Coates, [1968] S.C.R. 599, folld.

Lord v. Colvin, 3 Drew 222, folld.

Allen v. Allen, [1894] P. 248, folld.

R. v. Hadwen, [1902] 1 K.B. 882, C.C.R., folld.

McCann v. Behnke, [1940] 4 D.L.R. 272, folld.

Roe v. McGregor, [1968] 2 All E.R. 636, folld.

Sillery v. Canadian Petrofina, [1970] S.C.R. 533, folld.

Verdun v. Sun Oil Company Ltd., [1952] 1 S.C.R. 222, folld.

Counsel:

J. Turney Jones and David Russell, for the defendant, appellant;

A.A. LeBouthillier, for the plaintiff, respondent, and by way of cross-appeal.

APPEAL from a judgment of Dickson, J. dated March 31, 1970, (1970), 2 N.B.R.(2d) 408, which awarded the plaintiff, passenger damages for personal injury arising out of a motor vehicle accident.